961.465(2m)
(2m) A person may be subject to increased penalties under both this section and
s. 961.49 regarding the same unlawful act.
961.465(3)
(3) In this section, "precinct" means a place where any activity is conducted by a prison, jail or house of correction.
961.47
961.47
Conditional discharge for possession or attempted possession as first offense. 961.47(1)
(1) Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state or of any county ordinance relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under
s. 961.41 (3g) (b), the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under
s. 961.48. There may be only one discharge and dismissal under this section with respect to any person.
961.47(2)
(2) Within 20 days after probation is granted under this section, the clerk of court shall notify the department of justice of the name of the individual granted probation and any other information required by the department. This report shall be upon forms provided by the department.
961.47 History
History: 1971 c. 219;
1985 a. 29;
1989 a. 121;
1991 a. 39;
1995 a. 448 s.
285; Stats. 1995 s. 961.47.
961.47 Annotation
A disposition of probation without entering a judgment of guilt, was not appealable because there was no judgment. If a defendant desires either a final judgment or order in the nature of a final judgment for appeal purposes, he or she has only to withhold consent. State v. Ryback,
64 Wis. 2d 574,
219 N.W.2d 263 (1974).
961.47 Annotation
The reference to s. 161.41 (3) [now 961.41 (3g) (b)] in sub. (1) means that proceedings may only be deferred for convictions for crimes encompassed by s. 161.41 (3) [now 961.41 (3g) (b)]. State v. Boyer,
198 Wis. 2d 837,
543 N.W.2d 562 (Ct. App. 1995).
961.472
961.472
Assessment; certain possession or attempted possession offenses. 961.472(1)
(1) In this section, "facility" means an approved public treatment facility, as defined under
s. 51.45 (2) (c).
961.472(2)
(2) Except as provided in
sub. (5), if a person pleads guilty or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under
s. 961.41 (3g) (am),
(c), or
(d), the court shall order the person to comply with an assessment of the person's use of controlled substances. The court's order shall designate a facility that is operated by or pursuant to a contract with the county department established under
s. 51.42 and that is certified by the department of health and family services to provide assessment services to perform the assessment and, if appropriate, to develop a proposed treatment plan. The court shall notify the person that noncompliance with the order limits the court's ability to determine whether the treatment option under
s. 961.475 is appropriate. The court shall also notify the person of the fee provisions under
s. 46.03 (18) (fm).
Effective date note
NOTE: Sub. (2) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(2) Except as provided in sub. (5), if a person pleads guilty or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g) (a) 2., (c), (d) or (dm), the court shall order the person to comply with an assessment of the person's use of controlled substances. The court's order shall designate a facility that is operated by or pursuant to a contract with the county department established under s. 51.42 and that is certified by the department of health and family services to provide assessment services to perform the assessment and, if appropriate, to develop a proposed treatment plan. The court shall notify the person that noncompliance with the order limits the court's ability to determine whether the treatment option under s. 961.475 is appropriate. The court shall also notify the person of the fee provisions under s. 46.03 (18) (fm).
961.472(3)
(3) The facility shall submit an assessment report within 14 days to the court. At the request of the facility, the court may extend the time period by not more than 20 additional workdays. The assessment report may include a proposed treatment plan.
961.472(4)
(4) The court shall consider the assessment report in determining whether the treatment option under
s. 961.475 is appropriate.
961.472(5)
(5) If the court finds that a person under
sub. (2) is already covered by or has recently completed an assessment under this section or a substantially similar assessment, the court is not required to make the order under
sub. (2).
961.475
961.475
Treatment option. Whenever any person pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under
s. 961.41 (3g), the court may, upon request of the person and with the consent of a treatment facility with special inpatient or outpatient programs for the treatment of drug dependent persons, allow the person to enter the treatment programs voluntarily for purposes of treatment and rehabilitation. Treatment shall be for the period the treatment facility feels is necessary and required, but shall not exceed the maximum sentence allowable unless the person consents to the continued treatment. At the end of the necessary and required treatment, with the consent of the court, the person may be released from sentence. If treatment efforts are ineffective or the person ceases to cooperate with treatment rehabilitation efforts, the person may be remanded to the court for completion of sentencing.
961.48
961.48
Second or subsequent offenses. 961.48(1)
(1) If a person is charged under
sub. (2m) with a felony offense under this chapter that is a 2nd or subsequent offense as provided under
sub. (3) and the person is convicted of that 2nd or subsequent offense, the maximum term of imprisonment for the offense may be increased as follows:
961.48(1)(a)
(a) By not more than 6 years, if the offense is a Class C or D felony.
961.48(1)(b)
(b) By not more than 4 years, if the offense is a Class E, F, G, H, or I felony.
961.48(2m)(a)(a) Whenever a person charged with a felony offense under this chapter may be subject to a conviction for a 2nd or subsequent offense, he or she is not subject to an enhanced penalty under
sub. (1) unless any applicable prior convictions are alleged in the complaint, indictment or information or in an amended complaint, indictment or information that is filed under
par. (b) 1. A person is not subject to an enhanced penalty under
sub. (1) for an offense if an allegation of applicable prior convictions is withdrawn by an amended complaint filed under
par. (b) 2.
961.48(2m)(b)
(b) Notwithstanding
s. 971.29 (1), at any time before entry of a guilty or no contest plea or the commencement of a trial, a district attorney may file without leave of the court an amended complaint, information or indictment that does any of the following:
961.48(2m)(b)1.
1. Charges an offense as a 2nd or subsequent offense under this chapter by alleging any applicable prior convictions.
961.48(2m)(b)2.
2. Withdraws the charging of an offense as a 2nd or subsequent offense under this chapter by withdrawing an allegation of applicable prior convictions.
961.48(3)
(3) For purposes of this section, a felony offense under this chapter is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted of any felony or misdemeanor offense under this chapter or under any statute of the United States or of any state relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.
Effective date note
NOTE: This section is shown as affected eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
961.48 Second or subsequent offenses. (1) Except as provided in subs. (2) and (4), any person who is charged under sub. (2m) with a 2nd or subsequent offense under this chapter and convicted of that 2nd or subsequent offense may be fined an amount up to twice that otherwise authorized or imprisoned for a term up to twice the term otherwise authorized or both.
961.48 Note
(2) If any person is charged under sub. (2m) with a 2nd or subsequent offense under this chapter that is specified in s. 961.41 (1) (cm), (d), (e), (em), (f), (g) or (h), (1m) (cm), (d), (e), (em), (f), (g) or (h) or (3g) (a) 2., (c), (d), (dm) or (e), and he or she is convicted of that 2nd or subsequent offense, any applicable minimum and maximum fines and minimum and maximum periods of imprisonment under s. 961.41 (1) (cm), (d), (e), (em), (f), (g) or (h), (1m) (cm), (d), (e), (em), (f), (g) or (h) or (3g) (a) 2., (c), (d), (dm) or (e) are doubled. A person convicted of a 2nd or subsequent offense under s. 961.41 (3g) (c), (d) or (e) is guilty of a felony and the person may be imprisoned in state prison.
961.48 Note
(2m) (a) Whenever a person charged with an offense under this chapter may be subject to a conviction for a 2nd or subsequent offense, he or she is not subject to an enhanced penalty under sub. (1) or (2) unless any applicable prior convictions are alleged in the complaint, indictment or information or in an amended complaint, indictment or information that is filed under par. (b) 1. A person is not subject to an enhanced penalty under sub. (1) or (2) for an offense if an allegation of applicable prior convictions is withdrawn by an amended complaint filed under par. (b) 2.
961.48 Note
(b) Notwithstanding s. 971.29 (1), at any time before entry of a guilty or no contest plea or the commencement of a trial, a district attorney may file without leave of the court an amended complaint, information or indictment that does any of the following:
961.48 Note
1. Charges an offense as a 2nd or subsequent offense under this chapter by alleging any applicable prior convictions.
961.48 Note
2. Withdraws the charging of an offense as a 2nd or subsequent offense under this chapter by withdrawing an allegation of applicable prior convictions.
961.48 Note
(3) For purposes of this section, an offense is considered a 2nd or subsequent offense if, prior to the offender's conviction of the offense, the offender has at any time been convicted under this chapter or under any statute of the United States or of any state relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or depressant, stimulant or hallucinogenic drugs.
961.48 Note
(4) This section does not apply to offenses under s. 961.41 (3g) (a) 1., (b) and (f).
961.48 Annotation
The trial court erred in imposing a 2nd sentence on a defendant convicted of a 2nd violation of 161.41 (1) (a) and 161.14 (3) (k) [now 961.41 (1) (a) and 961.14 (3) (k)]. While the repeater statute, 161.48 [now 961.48], allows imposition of a penalty not exceeding twice that allowable for a 1st offense, it does not of itself create a crime and cannot support a separate and independent sentence. Olson v. State,
69 Wis. 2d 605,
230 N.W.2d 634.
961.48 Annotation
For offenses under ch. 161 [now 961], the court may apply this section or s. 939.62, but not both. State v. Ray,
166 Wis. 2d 855,
481 N.W.2d 288 (Ct. App. 1992).
961.48 Annotation
In sentencing a defendant when the maximum sentence is doubled under this section, the court considers the same factors it considers in all sentencing, including prior convictions. State v. Canadeo,
168 Wis. 2d 559,
484 N.W.2d 340 (Ct. App. 1992).
961.48 Annotation
Sentencing under this section was improper when the defendant did not admit a prior conviction and the state did not offer proof of one. State v. Coolidge,
173 Wis. 2d 783,
496 N.W.2d 701 (Ct. App. 1993).
961.48 Annotation
Sub. (4) sets forth a limitation on the 2nd or subsequent offense; the previous offense may be any conviction under ch. 161 [now 961]. State v. Robertson,
174 Wis. 2d 36,
496 N.W.2d 221 (Ct. App. 1993).
961.48 Annotation
This section is self-executing; a prosecutor may not prevent the imposition of the sentences under this section by not charging the defendant as a repeater. State v. Young,
180 Wis. 2d 700,
511 N.W.2d 309 (Ct. App. 1993).
961.48 Annotation
Conviction under this section for a second or subsequent offense does not require proof of the prior offense at trial beyond a reasonable doubt. State v. Miles,
221 Wis. 2d 56,
584 N.W.2d 704 (Ct. App. 1998).
961.48 Annotation
A conviction for possessing drug paraphernalia under s. 961.573 qualifies as a prior offense under sub. (3). State v. Moline,
229 Wis. 2d 38,
598 N.W.2d 929 (Ct. App. 1999).
961.49
961.49
Distribution of or possession with intent to deliver a controlled substance on or near certain places. If any person violates
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h) by delivering or distributing, or violates
s. 961.41 (1m) (cm),
(d),
(e),
(f),
(g) or
(h) by possessing with intent to deliver or distribute, cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or any form of tetrahydrocannabinols or a controlled substance analog of any of these substances and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years:
961.49(1)
(1) While the person is in or on the premises of a scattered-site public housing project.
961.49(2)
(2) While the person is in or on or otherwise within 1,000 feet of any of the following:
961.49(2)(a)
(a) A state, county, city, village or town park.
961.49(2)(d)
(d) A swimming pool open to members of the public.
961.49(3)
(3) While the person is in or on the premises of an approved treatment facility, as defined in
s. 51.01 (2), that provides alcohol and other drug abuse treatment.
961.49(4)
(4) While the person is within 1,000 feet of the premises of an approved treatment facility, as defined in
s. 51.01 (2), that provides alcohol and other drug abuse treatment, if the person knows or should have known that he or she is within 1,000 feet of the premises of the facility or if the facility is readily recognizable as a facility that provides alcohol and other drug abuse treatment.
961.49 Note
NOTE: This section is shown as affected by
2001 Wis. Act 109, eff 2-1-03. Prior to 2-1-03 it reads:
Effective date text
961.49 Distribution of or possession with intent to deliver a controlled substance on or near certain places. (1) If any person violates s. 961.41 (1) (cm), (d), (e), (em), (f), (g) or (h) by delivering or distributing, or violates s. 961.41 (1m) (cm), (d), (e), (em), (f), (g) or (h) by possessing with intent to deliver or distribute, cocaine, cocaine base, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone or any form of tetrahydrocannabinols or a controlled substance analog of any of these substances and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of imprisonment prescribed by law for that crime may be increased by 5 years:
961.49 Note
(a) While the person is in or on the premises of a scattered-site public housing project.
961.49 Note
(b) While the person is in or on or otherwise within 1,000 feet of any of the following:
961.49 Note
1. A state, county, city, village or town park.
961.49 Note
2. A jail or correctional facility.
961.49 Note
3. A multiunit public housing project.
961.49 Note
4. A swimming pool open to members of the public.
961.49 Note
5. A youth center or a community center.
961.49 Note
6. Any private or public school premises.
961.49 Note
7. A school bus, as defined in s. 340.01 (56).
961.49 Note
(c) While the person is in or on the premises of an approved treatment facility, as defined in s. 51.01 (2), that provides alcohol and other drug abuse treatment.
961.49 Note
(d) While the person is within 1,000 feet of the premises of an approved treatment facility, as defined in s. 51.01 (2), that provides alcohol and other drug abuse treatment, if the person knows or should have known that he or she is within 1,000 feet of the premises of the facility or if the facility is readily recognizable as a facility that provides alcohol and other drug abuse treatment.
961.49 Note
(2) (a) Except as provided in par. (b), the court shall sentence a person as provided in par. (am) if the person violates s. 961.41 (1) by delivering or distributing, or violates s. 961.41 (1m) by possessing with intent to deliver or distribute, a controlled substance included in schedule I or II, a controlled substance analog of a controlled substance included in schedule I or II or ketamine or flunitrazepam under any of the following circumstances:
961.49 Note
1. While the person is in or on the premises of a scattered-site public housing project.
961.49 Note
2. While the person is in or on or otherwise within 1,000 feet of any of the following:
961.49 Note
a. A state, county, city, village or town park.
961.49 Note
b. A jail or correctional facility.
961.49 Note
c. A multiunit public housing project.
961.49 Note
d. A swimming pool open to members of the public.
961.49 Note
e. A youth center or a community center.
961.49 Note
f. Any private or public school premises.
961.49 Note
g. A school bus, as defined in s. 340.01 (56).
961.49 Note
3. While the person is in or on the premises of an approved treatment facility, as defined in s. 51.01 (2), that provides alcohol and other drug abuse treatment.
961.49 Note
4. While the person is within 1,000 feet of the premises of an approved treatment facility, as defined in s. 51.01 (2), that provides alcohol and other drug abuse treatment, if the person knows or should have known that he or she is within 1,000 feet of the premises of the facility or if the facility is readily recognizable as a facility that provides alcohol and other drug abuse treatment.
961.49 Note
(am) The court shall sentence a person to whom par. (a) applies to at least 3 years in prison, but otherwise the penalties for the crime apply. Except as provided in s. 961.438, the court shall not place the person on probation. Except as provided in s. 973.01 (6), the person is not eligible for parole until he or she has served at least 3 years, with no modification by the calculation under s. 302.11 (1).
961.49 Note
(b) If the conduct described in par. (a) involves only the delivery or distribution, or the possession with intent to deliver or distribute, of not more than 25 grams of tetrahydrocannabinols, included in s. 961.14 (4) (t), or not more than 5 plants containing tetrahydrocannabinols, the court shall sentence the person to at least one year in prison, but otherwise the penalties for the crime apply. Except as provided in s. 961.438, the court shall not place the person on probation. Except as provided in s. 973.01 (6), the person is not eligible for parole until he or she has served at least one year, with no modification by the calculation under s. 302.11 (1).
961.49 Note
(3) A person who violates sub. (1) may be subject to increased penalties under both subs. (1) and (2) regarding the same unlawful act.
